Lord Hope of Craighead: My Lords, there are indeed various reasons to be concerned about the Bill but I should like to concentrate on two of them: the omission of torture from the list of offences which are excluded from the restrictions on prosecution in Part 1, and the duty to consider derogation from the convention in Clause 12. In doing so, I am drawing on my experience when I was sitting as a member of the Appellate Committee of this House in the cases of Pinochet in 1999, which was brought under the torture convention, and A v the Secretary of State in 2004, in which we held that a derogation order allowing for indefinite detention should be quashed.
Prohibition of the crime of torture has been recognised for many decades as one of the most fundamental obligations of the international community. It cannot be derogated from in any circumstances and all nations have an equal interest in the apprehension and prosecution of the offenders. In 1987 the UN Convention against Torture, which the United Kingdom did much to promote, came into force. One of its achievements is to prevent evasion of punishment by the torturer moving from one state to another. This is because article 5 requires each state party not only to establish its jurisdiction over torture when the alleged offender  is a national of that state, but to take jurisdiction over any alleged offender who is found within its territory. This is an international crime against which there is no safe haven.
For us to apply the measures listed in Part 1 of the Bill, the practical effect of which would, at the least, risk conferring immunity on the torturer after five years, would run counter to everything that the convention stands for. For that to happen would be a manifest breach of international law. As for the offender, such immunity as he may obtain in this country would be no protection against his being brought to justice elsewhere, as Senator Pinochet was to discover. It is not only the risk of having to face the International Criminal Court; it is the risk of being prosecuted for his crime in any other state that is a party to the convention to which he may go. The damage to our reputation, if that humiliating situation were to occur, would be incalculable. How could we be taken seriously in our attempts to promote the rule of law in those countries that least respect it? Torture should be on the list of exclusions.
Article 15 of the convention on human rights allows the state to
“take measures derogating from its obligations … In time of war or other public emergency threatening the life of the nation”
but only to the extent that this is “strictly required”. The words
“threatening the life of the nation”
are understood to mean an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community. The standard that these words set is very high. Furthermore, derogation from protection of the right to life, for which we should note our own Armed Services personnel—[Inaudible]—is permitted only for lawful acts of war, and no derogation at all is permitted from the prohibition of torture or inhuman or degrading punishment. This leaves the right to liberty, derogation from which would allow indefinite detention without charge, as the Secretary of State looked for in the case of A.
We are concerned in this Bill only with overseas operations, in which members of the Armed Forces come under attack or face the threat of attack or violent resistance. It seems that the need to conduct operations overseas, however significant, is very unlikely on its own to meet the test for derogation. Could it be said in these circumstances that the Secretary of State was facing a crisis or emergency which affects the whole population of this country and constitutes a threat to the organised life of the community? If not, prompting him nevertheless to consider derogation from the convention would be pointless, as the attempt would fail. In any event, do we really think that the Secretary of State would need to be reminded of this provision if the extreme situation that really does justify derogation were to occur? This clause looks like mere window-dressing. I suggest that it should be removed from the Bill.

Lord Truscott: My Lords, I recognise that the Bill is highly contentious, as today’s excellent debate has indicated, but I generally welcome it. For a long time now, I have been concerned about the number of vexatious complaints about members of our Armed Forces and the effect that this has had on them and their families. The debt that this country owes to its service personnel and veterans, as noble Lords have said, should never be forgotten.
Of course the Minister should ensure that the Bill adheres to the Geneva conventions and our obligations to the International Criminal Court. Her Majesty’s Government, as a number of noble Lords have said, and as the noble Baroness, Lady Massey, just mentioned, should improve the speed and quality of investigations—something lacking in this Bill—and streamline how they are carried out. Veterans should also retain the right to make civil claims against the MoD well after six years. As many noble Lords have argued, in addition to excluding sexual offences from the presumption against prosecution after five years, Her Majesty’s Government should also exclude crimes of torture,  war crimes, crimes against humanity and genocide. All these despicable crimes should face the full force of the law, however long ago they were committed.
In the other place, the Minister for Defence People and Veterans stated that Part 1 of the Bill did not constitute a statute of limitations and argued that, because the Bill still allowed criminal prosecutions and to take decisions on whether to prosecute even after five years, it was consistent with the UK’s international obligations, and I believe the Minister in this House confirmed that earlier today.
With regard to other alleged offences, I think the five-year hurdle is about right. Ten years, as some have suggested, is simply too long. If prosecutors cannot put together a criminal case in five years, they are not doing their jobs properly. That is not because I do not believe in human rights or the rights of victims; it is simply because I believe that 10 years is too long for those people who are innocent and facing investigation and accusations to endure without resolution. That goes for potential victims too. We should also remember the human rights of our service personnel and their families and the resulting strain, which can lead to marriage break-up, mental health issues and even suicide.
One of the greatest principles of the civilised world is the presumption of innocence—an international human right under Article 11 of the UN’s Universal Declaration of Human Rights, strangely not mentioned by any of the lawyers today. Sadly, a whole legal industry grew up in this country to pursue vexatious cases against our Armed Forces purely for financial gain and to monetise others’ misery. Service personnel and veterans faced totally unfounded allegations, and many found the presumption of innocence replaced with the presumption of guilt and trial by media. Noble Lords will well remember the example of the late Field Marshall Lord Bramall, tried by both the media and the Metropolitan Police without a shred of evidence. Although for different reasons, many veterans have had similar experiences.
Paul Shiner, the solicitor who was struck off, also mentioned several times today, made a fortune from persecuting innocent Armed Forces personnel, veterans and their families. More than £30 million of public money went through Shiner’s hands, and he passed literally thousands of bogus cases to the Iraq Historic Allegations Team, or IHAT. Shiner made millions out of others’ misery, and he was not the only lawyer. Red Snapper Group, with its 127 staff serving IHAT, cost the taxpayer £4.8 million and failed to secure a single successful prosecution. Red Snapper staff turned up at service personnel’s homes, pretended to be police officers and illegally threatened those being investigated with arrest. IHAT was closed down in 2017 after taking up 3,500 allegations of abuse in Iraq, mostly without any credible evidence whatsoever. Some informants, as has also been mentioned today, had been paid or encouraged to give false evidence against British soldiers. MPs called IHAT an unmitigated disaster. It should never be allowed to happen again.
Our Armed Forces personnel should not fear unwarranted prosecution when putting their lives on the line for our country. Of course, one of the problems  at the moment is that the law is constructed in such a way that those seeking bogus cases know that, under the law, they can pursue allegations that can result in the potential prosecution of members of the Armed Forces. That is what puts them and their families under strain. Of course the guilty should be prosecuted, but we should try to protect the innocent too—both members of our Armed Forces and potential victims of abuse.
In short, the Bill should be amended but if it helps to protect our Armed Forces and veterans from vexatious, venal and via allegations then it should be supported.